Regulation (EU) No 655/2014 of the European Parliament and of the Council of 15 May 2014 establishing a European Account Preservation Order procedure to facilitate cross-border debt recovery in civil and commercial matters

CHAPTER 1

SUBJECT MATTER, SCOPE AND DEFINITIONS

Article 1

Subject matter

Article 2

Scope

This Regulation does not apply to:

(a) rights in property arising out of a matrimonial relationship or out of a relationship deemed by the law applicable to such relationship to have comparable effects to marriage;

(b) wills and succession, including maintenance obligations arising by reason of death;

(c) claims against a debtor in relation to whom bankruptcy proceedings, proceedings for the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions, or analogous proceedings have been opened;

(d) social security;

(e) arbitration.

Article 3

Cross-border cases

For the purposes of this Regulation, a cross-border case is one in which the bank account or accounts to be preserved by the Preservation Order are maintained in a Member State other than:

(a) the Member State of the court seised of the application for the Preservation Order pursuant to Article 6; or

(b) the Member State in which the creditor is domiciled.

Article 4

Definitions

For the purposes of this Regulation:

(1) ‘bank account’ or ‘account’ means any account containing funds which is held with a bank in the name of the debtor or in the name of a third party on behalf of the debtor;

(2) ‘bank’ means a credit institution as defined in point (1) of Article 4(1) of Regulation (EU) No 575/2013 of the European Parliament and of the Council (²), including branches, within the meaning of point (17) of Article 4(1) of that Regulation, of credit institutions having their head offices inside or, in accordance with Article 47 of Directive 2013/36/EU of the European Parliament and of the Council (³), outside the Union where such branches are located in the Union;

(3) ‘funds’ means money credited to an account in any currency, or similar claims for the repayment of money, such as money market deposits;

(4) ‘Member State in which the bank account is maintained’ means: (a) the Member State indicated in the account’s IBAN (International Bank Account Number); or (b) for a bank account which does not have an IBAN, the Member State in which the bank with which the account is held has its head office or, where the account is held with a branch, the Member State in which the branch is located;

(5) ‘claim’ means a claim for payment of a specific amount of money that has fallen due or a claim for payment of a determinable amount of money arising from a transaction or an event that has already occurred, provided that such a claim can be brought before a court;

(6) ‘creditor’ means a natural person domiciled in a Member State or a legal person domiciled in a Member State or any other entity domiciled in a Member State having legal capacity to sue or be sued under the law of a Member State, who or which applies for, or has already obtained, a Preservation Order relating to a claim;

(7) ‘debtor’ means a natural person or a legal person or any other entity having legal capacity to sue or be sued under the law of a Member State, against whom or which the creditor seeks to obtain, or has already obtained, a Preservation Order relating to a claim;

(8) ‘judgment’ means any judgment given by a court of a Member State, whatever the judgment may be called, including a decision on the determination of costs or expenses by an officer of the court;

(9) ‘court settlement’ means a settlement which has been approved by a court of a Member State or concluded before a court of a Member State in the course of proceedings;

(10) ‘authentic instrument’ means a document which has been formally drawn up or registered as an authentic instrument in a Member State and the authenticity of which: (a) relates to the signature and the content of the instrument; and (b) has been established by a public authority or other authority empowered for that purpose;

(11) ‘Member State of origin’ means the Member State in which the Preservation Order was issued;

(12) ‘Member State of enforcement’ means the Member State in which the bank account to be preserved is maintained;

(13) ‘information authority’ means the authority which a Member State has designated as competent for the purposes of obtaining the necessary information on the debtor’s account or accounts pursuant to Article 14;

(14) ‘competent authority’ means the authority or authorities which a Member State has designated as competent for receipt, transmission or service pursuant to Article 10(2), Article 23(3), (5) and (6), Articles 25(3), 27(2) and 28(3) and the second subparagraph of Article 36(5);

(15) ‘domicile’ means domicile as determined in accordance with Articles 62 and 63 of Regulation (EU) No 1215/2012 of the European Parliament and of the Council (⁴).

CHAPTER 2

PROCEDURE FOR OBTAINING A PRESERVATION ORDER

Article 5

Availability

The Preservation Order shall be available to the creditor in the following situations:

(a) before the creditor initiates proceedings in a Member State against the debtor on the substance of the matter, or at any stage during such proceedings up until the issuing of the judgment or the approval or conclusion of a court settlement;

(b) after the creditor has obtained in a Member State a judgment, court settlement or authentic instrument which requires the debtor to pay the creditor’s claim.

Article 6

Jurisdiction

Article 7

Conditions for issuing a Preservation Order

Article 8

Application for a Preservation Order

The application shall include the following information:

(a) the name and address of the court with which the application is lodged;

(b) details concerning the creditor: name and contact details and, where applicable, name and contact details of the creditor’s representative, and: (i) where the creditor is a natural person, his date of birth and, if applicable and available, his identification or passport number; or (ii) where the creditor is a legal person or any other entity having legal capacity to sue or be sued under the law of a Member State, the State of its incorporation, formation or registration and its identification or registration number or, where no such number exists, the date and place of its incorporation, formation or registration;

(c) details concerning the debtor: name and contact details and, where applicable, name and contact details of the debtor’s representative and, if available: (i) where the debtor is a natural person, his date of birth and identification or passport number; or (ii) where the debtor is a legal person or any other entity having legal capacity to sue or be sued under the law of a Member State, the State of its incorporation, formation or registration and its identification or registration number or, where no such number exists, the date and place of its incorporation, formation or registration;

(d) a number enabling the identification of the bank, such as the IBAN or BIC and/or the name and address of the bank, with which the debtor holds one or more accounts to be preserved;

(e) if available, the number of the account or accounts to be preserved and, in such a case, an indication as to whether any other accounts held by the debtor with the same bank should be preserved;

(f) where none of the information required under point (d) can be provided, a statement that a request is made for the obtaining of account information pursuant to Article 14, where such a request is possible, and a substantiation as to why the creditor believes that the debtor holds one or more accounts with a bank in a specific Member State;

(g) the amount for which the Preservation Order is sought: (i) where the creditor has not yet obtained a judgment, court settlement or authentic instrument, the amount of the principal claim or part thereof and of any interest recoverable pursuant to Article 15; (ii) where the creditor has already obtained a judgment, court settlement or authentic instrument, the amount of the principal claim as specified in the judgment, court settlement or authentic instrument or part thereof and of any interest and costs recoverable pursuant to Article 15;

(h) where the creditor has not yet obtained a judgment, court settlement or authentic instrument: (i) a description of all relevant elements supporting the jurisdiction of the court with which the application for the Preservation Order is lodged; (ii) a description of all relevant circumstances invoked as the basis of the claim, and, where applicable, of the interest claimed; (iii) a statement indicating whether the creditor has already initiated proceedings against the debtor on the substance of the matter;

(i) where the creditor has already obtained a judgment, court settlement or authentic instrument, a declaration that the judgment, court settlement or authentic instrument has not yet been complied with or, where it has been complied with in part, an indication of the extent of non-compliance;

(j) a description of all relevant circumstances justifying the issuing of the Preservation Order as required by Article 7(1);

(k) where applicable, an indication of the reasons why the creditor believes he should be exempted from providing security pursuant to Article 12;

(l) a list of the evidence provided by the creditor;

(m) a declaration as provided for in Article 16 as to whether the creditor has lodged with other courts or authorities an application for an equivalent national order or whether such an order has already been obtained or refused and, if obtained, the extent to which it has been implemented;

(n) an optional indication of the creditor’s bank account to be used for any voluntary payment of the claim by the debtor;

(o) a declaration that the information provided by the creditor in the application is true and complete to the best of his knowledge and that the creditor is aware that any deliberately false or incomplete statements may lead to legal consequences under the law of the Member State in which the application is lodged or to liability pursuant to Article 13.

Article 9

Taking of evidence

Article 10

Initiation of proceedings on the substance of the matter

Where the court that issued the Order is located in the Member State of enforcement, the revocation or termination of the Order in that Member State shall be done in accordance with the law of that Member State.

Where the revocation or termination needs to be implemented in a Member State other than the Member State of origin, the court shall revoke the Preservation Order by using the revocation form established by means of implementing acts adopted in accordance with the advisory procedure referred to in Article 52(2), and shall transmit the revocation form in accordance with Article 29 to the competent authority of the Member State of enforcement. That authority shall take the necessary steps by applying Article 23 as appropriate to have the revocation or termination implemented.

For the purposes of paragraph 1, proceedings on the substance of the matter shall be deemed to have been initiated:

(a) at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the creditor has not subsequently failed to take the steps he was required to take to have service effected on the debtor; or

(b) if the document has to be served before being lodged with the court, at the time when it is received by the authority responsible for service, provided that the creditor has not subsequently failed to take the steps he was required to take to have the document lodged with the court.

The authority responsible for service referred to in point (b) of the first subparagraph shall be the first authority receiving the documents to be served.

Article 11

Ex parte procedure

The debtor shall not be notified of the application for a Preservation Order or be heard prior to the issuing of the Order.

Article 12

Security to be provided by the creditor

By way of exception, the court may dispense with the requirement set out in the first subparagraph if it considers that the provision of security referred to in that subparagraph is inappropriate in the circumstances of the case.

Article 13

Liability of the creditor

In the following cases, the fault of the creditor shall be presumed unless he proves otherwise:

(a) if the Order is revoked because the creditor has failed to initiate proceedings on the substance of the matter, unless that omission was a consequence of the debtor’s payment of the claim or another form for settlement between the parties;

(b) if the creditor has failed to request the release of over-preserved amounts as provided for in Article 27;

(c) if it is subsequently found that the issue of the Order was not appropriate or appropriate only in a lower amount due to a failure on the part of the creditor to comply with his obligations under Article 16; or

(d) if the Order is revoked or its enforcement terminated because the creditor has failed to comply with his obligations under this Regulation with regard to service or translation of documents or with regard to curing the lack of service or the lack of translation.

If accounts are preserved in more than one Member State, the law applicable to the liability of the creditor shall be the law of the Member State of enforcement:

(a) in which the debtor has his habitual residence as defined in Article 23 of Regulation (EC) No 864/2007 of the European Parliament and of the Council (⁶), or, failing that,

(b) which has the closest connection with the case.

Article 14

Request for the obtaining of account information

Notwithstanding the first subparagraph, the creditor may make the request referred to in that subparagraph where the judgment, court settlement or authentic instrument obtained by the creditor is not yet enforceable and the amount to be preserved is substantial taking into account the relevant circumstances, and the creditor has submitted sufficient evidence to satisfy the court that there is an urgent need for account information because there is a risk that, without such information, the subsequent enforcement of the creditor’s claim against the debtor is likely to be jeopardised and that this could consequently lead to a substantial deterioration of the creditor’s financial situation.

Each Member State shall make available in its national law at least one of the following methods of obtaining the information referred to in paragraph 1:

(a) an obligation on all banks in its territory to disclose, upon request by the information authority, whether the debtor holds an account with them;

(b) access for the information authority to the relevant information where that information is held by public authorities or administrations in registers or otherwise;

(c) the possibility for its courts to oblige the debtor to disclose with which bank or banks in its territory he holds one or more accounts where such an obligation is accompanied by an in personam order by the court prohibiting the withdrawal or transfer by him of funds held in his account or accounts up to the amount to be preserved by the Preservation Order; or

(d) any other methods which are effective and efficient for the purposes of obtaining the relevant information, provided that they are not disproportionately costly or time-consuming.

Irrespective of the method or methods made available by a Member State, all authorities involved in obtaining the information shall act expeditiously.

Article 15

Interest and costs

Article 16

Parallel applications

Article 17

Decision on the application for the Preservation Order

The Order may not under any circumstances be issued in an amount exceeding the amount indicated by the creditor in his application.

Article 18

Time-limits for the decision on the application for a Preservation Order

Article 19

Form and content of the Preservation Order

The Preservation Order shall be issued using the form established by means of implementing acts adopted in accordance with the advisory procedure referred to in Article 52(2) and shall bear a stamp, a signature and/or any other authentication of the court. The form shall consist of two parts:

(a) part A, containing the information set out in paragraph 2 to be provided to the bank, the creditor and the debtor; and

(b) part B, containing the information set out in paragraph 3 to be provided to the creditor and the debtor in addition to the information pursuant to paragraph 2.

Part A shall include the following information:

(a) the name and address of the court and the file number of the case;

(b) details of the creditor as indicated in point (b) of Article 8(2);

(c) details of the debtor as indicated in point (c) of Article 8(2);

(d) the name and address of the bank concerned by the Order;

(e) if the creditor has provided the account number of the debtor in the application, the number of the account or accounts to be preserved, and, where applicable, an indication as to whether any other accounts held by the debtor with the same bank also have to be preserved;

(f) where applicable, an indication that the number of any account to be preserved was obtained by means of a request pursuant to Article 14 and that the bank, where necessary pursuant to the second subparagraph of Article 24(4), is to obtain the number or numbers concerned from the information authority of the Member State of enforcement;

(g) the amount to be preserved by the Order;

(h) an instruction to the bank to implement the Order in accordance with Article 24;

(i) the date of issue of the Order;

(j) if the creditor has indicated an account in his application pursuant to point (n) of Article 8(2), an authorisation to the bank pursuant to Article 24(3) to release and transfer, if so requested by the debtor and if allowed by the law of the Member State of enforcement, funds up to the amount specified in the Order from the preserved account to the account that the creditor has indicated in his application;

(k) information on where to find the electronic version of the form to be used for the declaration pursuant to Article 25.

Part B shall include the following information:

(a) a description of the subject matter of the case and the court’s reasoning for issuing the Order;

(b) the amount of the security provided by the creditor, if any;

(c) where applicable, the time-limit for initiating the proceedings on the substance of the matter and for proving such initiation to the issuing court;

(d) where applicable, an indication as to which documents must be translated pursuant to the second sentence of Article 49(1);

(e) where applicable, an indication that the creditor is responsible for initiating the enforcement of the Order and consequently, where applicable, an indication that the creditor is responsible for transmitting it to the competent authority of the Member State of enforcement pursuant to Article 23(3) and for initiating service on the debtor pursuant to Article 28(2), (3) and (4); and

(f) information about the remedies available to the debtor.

Article 20